The Hindu : Iraq post-1441

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Thursday, Nov 28, 2002

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Iraq post-1441

By Chinmaya R. Gharekhan

The letter jointly written by the UNMOVIC and the IAEA, which has been annexed to Resolution 1441, lays down an extremely thorough, intrusive and offensive inspection regime. It is almost designed to provoke a defiant reaction from Iraq from time to time.

RESOLUTION 1441, adopted by the Security Council on November 8, 2002, is about Iraq's programmes of weapons of mass destruction, not about regime change in Baghdad. It has started a chain of events which need not but could lead the Council in future to authorise the use of "all necessary means" to achieve the objectives laid down in 1441, but even at that stage there would be no endorsement by the Council of any action to get rid of the President of Iraq. Regime change will not happen under U.N. auspices, indeed it could be prevented with U.N. help.

Under French and Russian prodding, the U.S. has had to agree to a two-stage approach. The Americans are probably not too unhappy at this result, since it makes them look reasonable in the eyes of the rest of the world and, more importantly, in the eyes of their own people. Further, it would make an eventual use of force, should it become unavoidable, legitimate. Even then, however, a change in regime would not be on cards, unless there would be a successful revolt from within the Iraqi leadership. The previous Bush presidency of the 1990s was no less desirous of doing away with Saddam Hussein and was only slightly less vocal in expressing its desire.

John Negroponte, the American representative, stated in the Council following the adoption of 1441, that the resolution accomplished each of the objectives laid down by the U.S. President George W. Bush, namely, that it (Council) find Iraq in material breach of its ongoing obligations, that it establish an enhanced system of inspections as a means of obtaining the disarmament of Iraq in the area of weapons of mass destruction (WMD), and that it make clear that the most serious consequences for Iraq would follow continued defiance. However, the fact that the U.S. felt it necessary to make this claim suggests some disappointment with the end result of eight weeks of negotiations.

There is no `automaticity' or `hidden trigger' in 1441. This is evident both from the text of the resolution as well as from the official statements of the two co-sponsors — the U.K. and the U.S. — and other members of the Security Council. Paragraphs 4,11 and 12 should ensure that any further violation by Iraq of its obligations would first be reported by the U.N. inspectors to the Council which will then have to decide, through its own informal but well entrenched system of consultations, on further course of action.

It is true that preambular paragraph 4 recalls the authority member-states have been given under Resolution 678 of 1990 to use necessary means to implement Security Council resolutions, but a similar provision is conspicuously absent from the operative section.

Resolution1441 is not tough in itself. It is no more tough than Resolution 678 and is much less tough than Resolution 687 of 1991, the `mother of all resolutions'— which India had voted in favour of — in its length, comprehensiveness and use of strong language. For some curious reason, 1441 does not issue a direct threat to Iraq of dire consequences, but, instead, recalls that the Council has repeatedly done so in the past.

The sting is in its tail. The letter jointly written by the head of United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and the Director-General of the IAEA to Iraq, which has been annexed to the resolution and, as such, forms an integral part of it. The letter lays down an extremely thorough, intrusive and offensive inspection regime. It is almost designed to provoke a defiant reaction from Iraq from time to time. Iraq will not even be able to control illegal export of its antiquities. The letter pointedly asks Iraq to ensure the safety of air operations in the no-fly zones. This is noteworthy and unfortunate since this is the first time that the concept of no-fly zones has been mentioned in an official Security Council resolution. The joint letter contains many other provisions such as the possibility of interviewing witnesses outside Iraq, security personnel accompanying the inspectors, etc., which have been demanded by the Americans ever since the present process began.

The interesting thing is that not a single member of the Council expressed unhappiness at the new inspection regime. Indeed, nearly every one of them welcomed it. This suggests a genuine concern at least at Iraq's WMD intentions and a strong desire to thwart its ambitions in this regard.

A new feature of 1441 is that it introduces, perhaps for the first time, the concept of `material breach'. The 1969 Vienna Convention on the Law of the Treaties defines material breach as "the violation of a provision essential to the object or purpose of the treaty". This point is significant. For example, paragraph 4 of Resolution 1441 states that false statements or omissions in the declarations submitted by Iraq will constitute further material breach. Thus, mere delay in submitting such statements need not constitute material breach.

From now on, a heavy responsibility rests on UNMOVIC and IAEA, especially the former. It is the biological and chemical weapons programmes that have given the greatest cause for suspicion. Iraq often complained, with good reason, of some of the inspectors spying for their Governments. The U.N. Secretary-General himself, in his remarks to the media after the adoption of 1441, admitted that UNMOVIC's predecessor, UNSCOM, did suffer from `weaknesses and errors'. Messrs. Blix and Elbarradei will no doubt take extra care to establish their independence and integrity, but they will necessarily have to depend on the Americans and others to ensure that the Iraqis do not short-change them. There is ample scope for mutual recriminations and eruption of crises from time to time.

Much is made of the fact that Resolution 1441 was adopted unanimously. Absence of unanimity would make no difference to Iraq; Resolution 678 was not adopted unanimously. Unanimity certainly is a matter of satisfaction to the co-sponsors, especially the affirmative vote of Syria, which came as a surprise. It can partly be explained by intra-Arab politics, but it was largely a reflection of Syria's careful calculation of its national interests.

Initial indications suggest that Iraq has taken a strategic decision to submit to the inspection regime, however unpleasant and humiliating. The Iraqi leadership should have only one objective, to get the sanctions lifted and to end Iraq's isolation. This will only be possible if the inspectors give the necessary certification to the Council. Once that happens, who knows? Even Israel's bombs might have to come out of the basement on to the negotiating table of arms control. 1441 is a legal and legitimate resolution adopted under Chapter VII of the Charter.

The Security Council is not a juridical body but a political organ, as we in India well know. The concept of fairness or otherwise is not too relevant. What is relevant is that Resolution1441 opens up a real possibility of closing the Iraq-Kuwait chapter without further bloodshed and without even a regime change in Baghdad.

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